Opinions
Publication year | 2001 |
Pages | 115 |
2001, February, Pg. 115. Opinions
Vol. 30, No. 1, Pg. 1
The Colorado Lawyer
February 2001
Vol. 30, No. 2 [Page 115]
February 2001
Vol. 30, No. 2 [Page 115]
From the Courts
Colorado Disciplinary Cases
Opinions
Colorado Disciplinary Cases
Opinions
The Colorado Supreme Court has adopted a series of changes to
the attorney regulation system, including the establishment
of the Office of the Presiding Disciplinary Judge, pursuant
to C.R.C.P. 251.16, and a new intermediate appellate entity
known as the Appellate Discipline Commission, pursuant to
C.R.C.P. 251.24. The Court also made extensive revisions to
the rules governing the disciplinary process, repealing
C.R.C.P. 241 et seq., and replacing those rules with C.R.C.P
251 et seq. The Presiding Disciplinary Judge presides over
attorney regulation proceedings and issues orders together
with a two-member hearing board at trials and hearings. The
Rules of Civil Procedure and the Rules of Evidence apply to
all attorney regulation proceedings before the Presiding
Disciplinary Judge. See C.R.C.P. 251.18(d)
Beginning with the September 1999 issue, The Colorado Lawyer
will publish the summaries and full-text opinions of the
Presiding Disciplinary Judge, Roger L. Keithley, and a
two-member hearing board, whose members are drawn from a pool
appointed by the Supreme Court, and the opinions of the
Appellate Discipline Commission
These Opinions may be appealed in accordance with C.R.C.P.
251.26 and C.R.C.P.
The full-text opinions, along with their summaries, are
available on the CBA homepage at
http://www.cobar.org/tcl/index.htm. See page 112 for details.
They are also available on Lexis-Nexis under
www.lexis.com/research. The summaries and opinions may then
be located by clicking on States Legal U.S./Colorado/Cases
and Court Rules/By Court/Colorado Supreme Court Disciplinary
Opinions.
Case No. 00PDJ010
The People of the State of Colorado,
Complainant,
v.
Pamela F. Mucklow
Respondent.
Original Proceeding in Discipline before the
Presiding Disciplinary Judge
OPINION AND ORDER IMPOSING SANCTIONS
Opinion issued by Presiding Disciplinary Judge Roger L.
Keithley and Hearing Board members Richard P. Holme, and
Henry C. Frey, both members of the bar. Hearing Board Member
Richard P. Holme dissents.
SANCTION IMPOSED: PUBLIC CENSURE
This matter was heard on July 13, 2000 before the Presiding
Disciplinary Judge ("PDJ") and two Hearing Board
members, Richard P. Holme, and Henry C. Frey. Charles E.
Mortimer, Jr., Assistant Attorney Regulation Counsel,
represented the People of the State of Colorado (the
"People"). David R. Brougham represented
respondent. The People's exhibits 1 through 7 and
respondent's exhibits A, C and D were admitted into
evidence by stipulation. The PDJ and Hearing Board heard
testimony from the People's witnesses George R. Buck, Jr.
and Pamela F. Mucklow ("Mucklow") and from
respondent's witness Michael F. Green. Mucklow testified
on her own behalf. The PDJ and Hearing Board considered the
testimony and exhibits admitted into evidence, assessed the
credibility of the witnesses and made the following findings
of fact which were established by clear and convincing
evidence:
I. FINDINGS OF FACT
Pamela F. Mucklow ("Mucklow") has taken the oath of
admission, was admitted to the bar of this court on October
14, 1994, and is registered upon the official records as
attorney registration number 24710. Mucklow is subject to the
jurisdiction of this court pursuant to C.R.C.P. 251.1 (b).
Following her admission to the bar, Mucklow spent three years
seeking a full time attorney position. During the three-year
period she served in various volunteer positions, worked as a
guardian ad litem and as an intern with the City of Aurora
and later with the City and County of Denver. Mucklow was
employed as a deputy district attorney in the Twenty-Second
Judicial District beginning in July 1997. She had not
previously been employed as a deputy district attorney.
The Skidmore Matter
In April 1998, John Skidmore ("Skidmore") was
charged with second degree assault in violation of §18-3-203,
6 C.R.S. (1998) in connection with a domestic disturbance.
Mucklow was assigned to prosecute the case. Skidmore hired
George R. Buck, Jr., ("Buck") to represent him. A
preliminary hearing was scheduled in county court for
Tuesday, May 19, 1998 at 1:30 p.m. at the courthouse in
Cortez, Colorado.
On May 14, 1998, the district attorney's office received
a letter from the complaining witness in the Skidmore case in
which the complaining witness recanted the version of events
which provided a basis for the criminal charges. On Friday,
May 15, 1998 in preparation for the preliminary hearing the
following Tuesday, Mucklow for the first time looked at the
outer jacket of the Skidmore file and noted that no plea
bargain had been extended to Buck. She telephoned Buck's
office and left a message stating that the prosecution would
accept a plea of guilty to assault in the third degree. Buck
communicated the plea bargain to his client on Monday, May
18, 1998. There were no further discussions regarding the
plea bargain.
Also on Monday, May 18, while reviewing the Skidmore file for
the preliminary hearing in more detail, Mucklow discovered a
letter from the alleged victim of the assault. In the letter,
the alleged victim recanted her allegation that Skidmore had
assaulted her. Mucklow immediately recognized that the letter
constituted exculpatory evidence which had to be provided to
defense counsel. However, she decided that the letter and its
contents was not material to the issues before the court at
the preliminary hearing and, therefore, neither disclosure of
the letter nor its contents was necessary prior to that
proceeding. Mucklow determined, in light of the
circumstantial evidence she intended to offer, that the
exculpatory letter from the alleged victim would not alter
her approach to the preliminary hearing nor would it alter
the outcome. Mucklow perceived the letter to be just one more
instance of a domestic violence victim recanting an earlier
version of events after the passage of time. It was
Mucklow's belief that such recanting letters were often
instigated by the person charged with the criminal offense
and therefore concluded that Buck probably already knew about
it.1 Notwithstanding her knowledge that the alleged victim
had recanted her version of events, Mucklow neither modified
nor withdrew the plea bargain she had previously extended to
defense counsel.
At the appointed time on May 19, 1998, both Mucklow and Buck
appeared in the courtroom for the preliminary hearing.
Although Mucklow had sufficient time and opportunity to give
Buck a copy of the letter or to advise him of it prior to the
commencement of the preliminary hearing, she elected not to
do so. Buck observed that the alleged victim was not present
to testify. Consequently, he advised his client that without
the victim's testimony, there was a strong likelihood
that the case would not be bound over to district court on
the felony charge of second degree assault but that it was
probable that it would be bound over to county court on a
misdemeanor charge of third degree assault, resulting in a
county court trial to a jury of six rather than a district
court trial to a jury of twelve. Buck advised his client that
a jury of twelve was strategically more favorable to Skidmore
than a jury of six. Based on this advice, Skidmore waived the
preliminary hearing and requested that the matter be removed
for trial to the district court in Montezuma County. The
court bound the matter over to the district court.
Immediately following the preliminary hearing, Mucklow
followed the normal office routine relating to disclosure of
exculpatory documentation and placed the letter in the
discovery workbasket to be provided to defendant's
counsel. The letter was processed by the office staff and
sent to opposing counsel via first class mail.
On May 21, 1998, two days after the preliminary hearing, Buck
received a copy of the alleged victim's letter via first
class mail from the district attorney's office. Buck
recognized that Mucklow had delayed disclosure of the letter
until after the preliminary hearing and moved for sanctions
against the prosecutor's office stating that Mucklow
failed to make timely disclosure to the defense of all
evidence or information known to the prosecutor that tended
to negate the guilt of the accused or mitigate the offense.
Buck's motion referred specifically to the disclosure
obligations set forth in Colo. R. Crim. P. 16 and Colo. RPC
3.8(d).2 The district attorney's office thereafter
offered to dismiss the case if Skidmore would withdraw the
motion for sanctions. The charges against Skidmore were
dismissed.
At the time of these events, Mucklow understood her
obligations under The Rules of Professional Conduct to be the
same as her obligations under Colo. R. Crim. P. 16 and
controlling constitutional law. Mucklow could not clearly
recall whether she noticed Buck's reference to Colo. RPC
3.8(d) in the motion for sanctions.
The Stepbrother Sexual Abuse Matter
Five months after the Skidmore matter, Mucklow was assigned
to a criminal matter involving an eleven-year-old girl who
alleged that her stepbrother had sexually molested her. The
stepbrother was charged with sexual assault on a child §
18-3-405, 6 C.R.S. (1999) (a class four felony) sexual
assault on a child by one in a position of trust §
18-3-405.3, 6 C.R.S. (1999) (a class three felony) and sexual
assault on a child as a pattern of behavior, §
18-3-405(2)(d), 6 C.R.S. (1999). In multiple interviews with
different individuals, the child had described oral-genital
contact...
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